Quote of the week
Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
Ramaphosa should jump at the chance to clear his name before an impeachment inquiry — if he has nothing to hide
The report of the independent section 89 panel on whether sufficient evidence exists to warrant a full inquiry by an ad hoc committee of the National Assembly into whether President Cyril Ramaphosa committed serious violations of the Constitution or the law, or is guilty of serious misconduct, contains devastating ‘findings’ against the President. While there are significant leaps of logic in the report (arguably making it vulnerable to judicial review), it does not necessarily mean that the President has no case to answer.
Arguably the most damaging aspect of the Phala Phala panel report is its conclusion that the President has a case to answer on the origins of the foreign currency that was stolen, as well as the underlying transaction for it.
The President claimed that the stolen money was the proceeds of the sale of 20 buffaloes to Mr Mustafa Mohamed Ibrahim Hazim, a citizen of Sudan, and furnished the panel with “an acknowledgement of receipt” as proof, but the panel concluded that there was substantial doubt that this was true.
This conclusion is not surprising.
As the panel pointed out, it is odd that a foreign national would rock up at Phala Phala without making prior arrangements to view the animals with more than $500,000 in foreign currency on hand, would be given an “acknowledgement of receipt” that contained no particulars of the buyer “such as his physical address, telephone numbers, business address, and other personal details such as his passport number”, and would make no arrangements to collect the buffaloes he had bought more than two-and-a-half years ago. It is also odd that the money was not kept in a safe, but was rather stuffed in a sofa where it was kept for well over a month.
The second truly damaging conclusion reached by the panel is that president Ramaphosa exposed himself to a situation involving a conflict between his official responsibilities and his private interests, most notably by seeking assistance from the president of Namibia to apprehend the suspects of the theft and to keep the matter quiet.
The panel also quoted from a confidential report of the Namibia Commissioner of the Criminal Investigation Department (dated 21 June 2020) which stated that discussions about the theft “are allegedly going on between the country’s two Presidents”, and noted that “due to the sensitivity of the matter and the envisaged fallout it will create in South Africa [the South African authorities] requested that the matter is handled with discretion”.
(It must be noted that the panel seemed to have accepted without question that the Namibian Report was genuine and that the claims made in it were true, despite the fact that the report was furnished by the former head of the South African State Security Agency, Mr Arthur Fraser, whose credibility is not beyond reproach.)
On the other hand, I find the panel’s conclusion that there is prima facie evidence that the President violated section 34(1) read with section 34(2) of the Prevention and Combating of Corrupt Activities Act by not reporting the theft to a police official in the Directorate for Priority Crime Investigation (known as the Hawks), unpersuasive. Section 34(1) required the President, as a member of the Phala Phala closed corporation, to report the theft, or “cause such knowledge or suspicion to be reported” to the police official in the Directorate for Priority Crime Investigation.
The panel held that it was “common cause that the President reported the housebreaking and theft to General Rhoode” and that he “expected the General to process the report in accordance with police procedures”. The panel also noted that given “the high rank in the police hierarchy that these senior police officers hold, we can assume they knew that theft which involves such a huge amount had to be reported to the police official in the Directorate for Priority Crime Investigation”.
On the panel’s own version of events, the failure lies with General Rhoode and not with the President, who expected the general to report the matter in “accordance with police procedures”.
Apart from the above, the major weakness of the panel report is that it does not deal adequately with the question of whether any breaches of the Constitution or the law or any misconduct were of a serious nature. As the panel noted, “not every violation of the Constitution or the law, or misconduct constitutes a ground for impeachment and removal from office”. Only serious violations justify impeachment.
The rules of the National Assembly define serious misconduct as “unlawful, dishonest or improper behaviour performed by the President in bad faith”, and a serious violation of the Constitution or the law, as “behaviour by the President amounting to an intentional or malicious violation of the Constitution or the law performed in bad faith”.
This means that the question of whether the President had acted in bad faith and with the necessary intention, is crucial in determining whether grounds for impeachment exist. Where the President acts in breach of the Constitution, where the relevant provision of the Constitution is reasonably open to different interpretations.
The panel argued that “bad faith can be inferred from the nature and the circumstances surrounding the violation of the Constitution or the law and misconduct”. But it seemed to have accepted that what matters is whether the allegations are serious, and that it was not necessary to consider whether the President had the intention to violate the Constitution or the law or commit misconduct.
Had it done so, it may well have concluded that receiving foreign currency from an unexplained source, and using the position as Head of State to keep the theft secret and to persuade the government of Namibia to do so as well, amounts to serious violations or misconduct. (But it would have strengthened the panel’s report if it had identified the applicable criminal provisions that may have been breached.)
But its failure to do so casts doubt on at least one of its other conclusions, namely that the President may have committed a serious violation of the Constitution by running the Phala Phala game farm, because by doing so he had undertaken “other paid work” in breach of section 96(2)(a) of the Constitution. The panel noted that the term “other paid work” is not defined in the Executive Ethics Code. Nor have our courts provided a definitive definition of this term. The panel also held — correctly in my view — that the term should be interpreted expansively to cover “all work for financial gain or reward whether as employees or self-employed”.
President Ramaphosa argued that he had declared his interest in Phala Phala and that he was not getting paid for his work, and that section 96(2)(a) therefore did not apply. While he may well be wrong about this, the fact that he declared this interest and that there is no definitive definition of the term, means that it would be difficult to argue that there is evidence that the President’s actions in this regard amount to an intentional or malicious violation of the Constitution or the law performed in bad faith.
If the President’s lawyers advise him that the report is not beyond reproach, the President may be tempted to approach the courts to have the panel report reviewed as set aside on the grounds of legality. As all exercises of public power are, in principle, reviewable by our courts, and as the report was prepared in accordance with the rules of the National Assembly as authorised by the Constitution, the report may well be reviewable. Given the weaknesses in the report, it is not inconceivable that such a review may be wholly or partially successful.
Even if such a review is eventually unsuccessful, it may delay the President’s day of reckoning for two or three years, allowing his less principled supporters to invoke a non-existent version of the sub judice rule to argue that the many grave questions about the President’s conduct should only be discussed once the courts have finalised the matter. (Jacob Zuma and Busisiwe Mkhwebane have shown just how effective such a strategy can be.)
But none of this may matter much. Even if the panel’s report is set aside, the questions about where the foreign currency came from, why it was stuffed in a couch and its theft kept secret, and what President Ramaphosa may or may not have asked his Namibian counterpart to do, will not go away. The only way to make the questions go away is to provide a detailed and honest explanation, supported by the evidence of others involved in the matter as well as any relevant documents, something (as the panel noted) the President has not yet done.
An impeachment inquiry by an ad hoc committee of the National Assembly would be the perfect place to do so. Of course, such an inquiry would be disruptive and would provide a platform for opposition parties to shout their indignation to the heavens. But if the President has nothing to hide, he would be wise to jump at the opportunity to clear his name before such an ad hoc committee.
The obvious alternative is to resign as President of the ANC and the country.
